In re A.M.

281 Neb. 482

797 N.W.2d 233

In re INTEREST OF A.M., Jr., alleged to be a dangerous sex offender.A.M., Jr., appellant,

v.Mental Health Board of the 11th Judicial District, appellee.

No. S–10–320.

Supreme Court of Nebraska.

May 13, 2011.

Syllabus by the Court

1. Mental Health: Appeal and Error. The district court reviews the determination of a mental health board de novo on the record.

2. Judgments: Appeal and Error. In reviewing a district court's judgment, an appellate court will affirm unless it finds, as a matter of law, that clear and convincing evidence does not support the judgment.

3. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional presents a question of law, which the Nebraska Supreme Court resolves independently of the lower court's determination.

4. Due Process. Due process requires a neutral, or unbiased, adjudicatory decisionmaker.

5. Administrative Law: Presumptions. Administrative adjudicators serve with a presumption of honesty and integrity.

6. Administrative Law: Recusal: Presumptions: Proof. A party seeking to disqualify an adjudicator because of bias or prejudice bears the heavy burden of overcoming the presumption of impartiality.

7. Administrative Law. Factors that may indicate partiality or bias of an adjudicator are a pecuniary interest in the outcome of the proceedings, a familial or adversarial relationship with one of the parties, and a failure by the adjudicator to disclose the suspect relationship.

8. Administrative Law: Recusal: Presumptions. An adjudicator should not hear a case when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the adjudicator's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.

9. Administrative Law: Due Process. Although due process requires disqualification when the administrative adjudicator has actually prejudged the precise facts at issue, due process does not require the disqualification of one who has merely been exposed to or investigated the facts at issue.

10. Statutes: Legislature: Intent. In construing a statute, a court determines and gives effect to the legislative intent behind the enactment.

11. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an appellate court gives words in a statute their ordinary meaning.

12. Constitutional Law: Equal Protection. The Nebraska and federal Equal Protection Clauses grant the same level of protection. Both require the State to treat similarly situated people alike.

13. Constitutional Law: Statutes. The 14th Amendment does not forbid statutes and statutory changes to have a beginning and thus to discriminate between the rights of an earlier and later time.

14. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitutionality of a statute is on the one attacking its validity.

15. Statutes: Special Legislation. A legislative act constitutes special legislation if (1) it creates an arbitrary and unreasonable method of classification or (2) it creates a permanently closed class.

16. Constitutional Law: Statutes: Special Legislation. When the Legislature confers privileges on a class arbitrarily selected from many who are standing in the same relation to the privileges, without reasonable distinction or substantial difference, then the statute in question has resulted in the kind of improper discrimination prohibited by the Nebraska Constitution.

17. Special Legislation. Classifications for the purpose of legislation must be real and not illusive; they cannot be based on distinctions without a substantial difference.

18. Constitutional Law: Special Legislation. The general test of constitutionality for prohibitions against special legislation is reasonableness of classification and uniformity of operation.

19. Constitutional Law: Special Legislation. Classification is proper if the special class has some reasonable distinction from other subjects of a like general character, which distinction bears some reasonable relation to the legitimate objectives and purposes of the legislation. The question is always whether the things or persons classified by the act form by themselves a proper and legitimate class with reference to the purpose of the act.

20. Constitutional Law. Nebraska's separation of powers clause prohibits the three governmental branches from exercising the duties and prerogatives of another branch.

21. Constitutional Law. The separation of powers clause prevents a branch from delegating its own duties or prerogatives except as the constitution directs or permits.

22. Administrative Law. Administrative agencies are capable of exercising quasi-judicial functions.

23. Criminal Law: Statutes: Legislature. The prohibition against bills of attainder prohibits trials by the Legislature, and it forbids the imposition of punishment by the Legislature on specific persons.

24. Criminal Law: Statutes: Words and Phrases. A bill of attainder is a legislative act that applies to named individuals or to easily ascertained members of a group in a way that inflicts punishment on them without a judicial trial.

25. Criminal Law: Statutes. To constitute a bill of attainder, the law must (1) specify the affected persons, (2) inflict punishment, and (3) lack a judicial trial.

26. Constitutional Law: Statutes: Proof. Only the clearest proof suffices to establish the unconstitutionality of a statute as a bill of attainder.

27. Constitutional Law. The protection against ex post facto laws is the same under the Nebraska and federal Constitutions.

28. Constitutional Law: Criminal Law: Statutes. Any statute which punishes as a crime an act previously committed which was innocent when done, which makes more burdensome the punishment for a crime after its commission, or which deprives one charged with a crime of any defense available according to law at the time when the act was committed is prohibited as ex post facto.

29. Constitutional Law: Criminal Law: Other Acts: Time. It is only criminal punishment that the Ex Post Facto Clause prohibits. The retroactive application of civil disabilities and sanctions is permitted.

30. Sentences: Statutes: Intent. To determine whether a statute imposes criminal punishment or civil sanctions, a court applies the two-pronged intent-effects test.

31. Convicted Sex Offender: Legislature: Intent. The Legislature enacted the Sex Offender Registration Act to establish a civil regulatory scheme to protect the public from sex offenders.

32. Convicted Sex Offender: Statutes: Sentences. The Sex Offender Commitment Act does not constitute ex post facto legislation because it is not punitive in nature.

33. Constitutional Law: Double Jeopardy. The protections of the Double Jeopardy Clauses of the state and federal Constitutions are coextensive.

34. Statutes: Double Jeopardy. If a statute is not punitive, it does not violate the Double Jeopardy Clause.

35. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

36. Ordinances: Appeal and Error. When evaluating an ordinance for vagueness, an appellate court does not seek mathematical certainty, but, rather, flexibility and reasonable breadth.

37. Statutes. A statute will not be deemed vague if it uses ordinary terms which find adequate interpretation in common usage and understanding.

38. Constitutional Law: Statutes. The void-for-vagueness doctrine applies to civil as well as criminal statutes.

39. Sentences: Prior Convictions. A court cannot use a void conviction to enhance punishment for a later offense.

40. Convicted Sex Offender: Sentences. Commitment under Nebraska's Sex Offender Commitment Act is a civil restraint that does not enhance punishment.

41. Prior Convictions: Collateral Attack. A defendant cannot collaterally attack his or her conviction in a separate proceeding for errors stemming from Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

42. Due Process: Trial: Confessions. It is a violation of the Due Process Clause to use a defendant's involuntary statement against him or her at a criminal trial.

43. Constitutional Law: Miranda Rights. The Fifth Amendment precludes the use of compelled testimony and goes further by requiring Miranda warnings for some custodial interrogations.

44. Convicted Sex Offender: Mental Health: Evidence. Under Neb.Rev.Stat. § 71–955 (Reissue 2009), a mental health board in a proceeding under the Sex Offender Commitment Act cannot consider any evidence that would be inadmissible in a criminal proceeding.

45. Criminal Law: Trial: Confessions: Expert Witnesses. In a criminal trial, the prosecution cannot use for any purpose a defendant's involuntary statements or any evidence that is directly or indirectly derived from them. This includes an expert's opinion based on them.

46. Criminal Law: Prior Convictions: Confessions: Evidence. Even after conviction, if a person in prison or on probation is compelled to make incriminating statements, those statements are inadmissible in a later criminal proceeding for any crime other than the crime for which the person has been convicted.

47. Self–Incrimination: Time. In most contexts, the privilege against self-incrimination is not self-executing. A person must timely invoke it, or it will be lost.

48. Presentence Reports. Routine presentence interviews, even if the defendant is in custody, are not normally considered coercive interrogations.

49. Constitutional Law: Self–Incrimination: Probation and Parole. The State cannot constitutionally carry out a threat to revoke probation for the legitimate exercise of the Fifth Amendment privilege.

50. Appeal and Error. An appellate court may, at its...